News & Social

Social Welfare & Pension Act 2013

I informed all members some months ago that The Recoverable Benefits and Assistance Scheme was to come into existence but as you know its implementation was delayed but it will now come into effect on the 1st August next.

The Law Society in its legal Ezine for members, Issue 54, July 2014, has summarised the scheme and all practitioners should look at this and the Notices previously sent by the Southern Law Association.

_______________Michael EnrightChairmanLitigation CommitteeJuly 2014

Social Welfare & Pension Act, 2013 (Notice 15/04/14)

The above Act and in particular that section dealing with the recovery of benefits paid by the Department of Social Welfare will come into effect on (edited as per change of date above) 1st August 2014 . From that date, all “Indemnifiers” will be required to obtain a “Recoverable Benefits Certificate” from the Department before any injury claim is settled.

You will find attached details of the relevant section which I have prepared. As you will see, the Act is primarily directed toward Insurance Companies, but also to any individual or company that is effectively self insured. However, all solicitors should be aware of the following matters:-

1. The Act can apply to Individuals or Companies who are effectively self insured.

2. The refund to the Department of Social Welfare will be over and above the settlement figures agreed with the Plaintiff.

3. No case can be settled without the relevant certificate which will probably mean that “sudden” discussions are a thing of the past. It also appears that the “all in settlement” is likely to disappear.

4. All solicitors should be aware that a significant amount of information will now be made available to the Department of Social Welfare. It is likely that this information will be available to other Departments which could cause problems, e.g. in the event of a person claiming Social Welfare and claiming loss of wages etc.

5. Not all benefits have to be repaid, but where they are, it is likely that up to date details will be required at settlement discussions so that Special Damages (particularly loss of wages) can be calculated accurately and agreed.

6. Court Orders will be required in the event of a split on liability and apparently this will be strictly enforced.

7. It will be a matter for the Indemnifier to obtain the necessary certificate. If relevant the Injuries Board will apply for the certificate and in this case, it is likely better information will now be required to enable figures to be finalized.

Continued..

SOCIAL WELFARE AND PENSIONS ACT, 2013This bill requires all “Indemnifiers” to seek a “Recoverable Benefits Certificate” from the Department of Social Welfare on any Personal Injury claim settled from 12/5/2014 onwards.The certificate must be secured before any Injury claim is settled. If benefits have been paid by the Department of Social Welfare relevant to the accident, then the amount of these benefits must be reimbursed separately to the Department of Social Welfare at the same time as the settlement cheque is issued to the Claimant.An Indemnifier is any Insurer, or any Individual or Company that is effectively Self Insured.

Relevant Benefits: • The benefits are:-o Illness Benefito Partial Capacity Benefito Injury Benefito Disablement Pension (Incapacity Supplement)o Invalidity Pensiono Disability Allowance• An Indemnifier can appeal the amount of any benefit paid by the Department. They must, however, first reimburse the Department the amount indicated in the Certificate and then lodge any appeal.

Seeking Certificate of Benefits:• The Department has designed an application form (RBA Form) for requesting a Statement of Recoverable Benefits.• This form will require details of the PPS no. for the Claimant, along with the name, address, date of birth, date of accident.• It requires details of the Indemnifier.• It requires details of the Claimant’s legal advisors/representative.• The Certificate must be sought regardless of whether the Claimant is a resident of this Jurisdiction or not.• If an indemnifier receives a Certificate with “nil” payments, but later discovers that the address given for the Claimant was incorrect or other personal information given was incorrect, then the Indemnifier is “honour bound” to re submit a form to the Department to determine if this search of the Social Welfare Database offers a different “benefits certificate” finding.

Issuing the Recoverable Benefits Certificate:• The Department will issue the Certificate within 28 days of the receipt of the request.• The Certificate of Benefits will also be sent by the Department to the Claimant or his Solicitor, if represented.• They expect a great number of the Certificates to indicate “nil” benefits paid. In such cases they indicate that the Certificate should issue within days.• The certificate issued will be valid for a period of 90 days. If a settlement is not achieved within this period then the Indemnifier must request a further Certificate of Benefits paid.• The Department can recover benefits paid for a maximum period of 5 years from date of accident.• The benefits recoverable are retrospective. Any benefits paid before the 12/5/2014 are recoverable by the Department.

Data Protection:• The Data Commissioner has confirmed to the Department of Social Welfare that there is no difficulty for an Indemnifier seeking the PPS No. from a Claimant.

Injuries Board:• From the 12/5/2014, the Injuries Board can only make an award on any claim when they have secured the “Recoverable Benefits Certificate” from the Department of Social Welfare.• The Injuries Board will make a separate award for any benefits to be repaid to the Department.

Injury Claims with Liability in Issue:• Unless there is a Court Order indicating that there was a split on liability, the Department will expect full reimbursement of any benefit paid.• If the Court Order indicates, say, a 50/50 split, then the Indemnifier must copy this to the Department and will then only be obliged to reimburse to the Department 50% of the benefits recoverable.• Therefore any buy off or apportionment settlement reached by an Indemnifier with a Claimant will lead to a full reimbursement of any benefit to the Department.• If there are multiple Indemnifiers being pursued by a Claimant, the Certificate of Benefits paid must be secured by all Indemnifiers.• If there is an apportionment on liability between Defendants, the Department will accept each Defendant’s separate payment of their own proportion of the agreed apportionment of liability between them. It will be necessary for each Indemnifier, in such cases, to set out to the Department what the split on liability between each Defendant was.